dissenting:
I believe that appellant should be discharged because the Commonwealth failed to exercise due diligence to bring him to trial within the period specified by Pa.R.Crim.P. 1100.
-1-
In addressing the Commonwealth’s argument that the appeal should be quashed for noncompliance with Pa.R. App.P. 2111(a), the majority states, “Had we not availed ourselves of the Commonwealth’s brief and the. record of the post-verdict motions hearing in the trial court, we would be unable to determine what appellant’s Rule 1100 argument is.” At 417. I disagree. It is true that, instead of using the heading, “Statement of Questions Involved,” Pa. R.A.P. 2111(a)(3), 2116, appellant’s counsel uses, “Question.” Instead of dividing his argument into “Statement of the Case,” “Summary of Argument,” and “Argument,” *433Pa.R.A.P. 2111(a)(4), (5), and (6), counsel has a single section, entitled “Index,” with, immediately beneath, “History of the Case.” There follow a statement of the facts and appellant’s argument, with appropriate citations. But, appellant’s argument, though not elegantly stated, is easily grasped. Indeed, the Commonwealth’s assertion, Brief for Commonwealth at 2, that it “is put to a serious disadvantage in determining what precise issues are before this Court,” is belied by its brief, which fully responds to appellant’s argument.
I therefore find no merit in the Commonwealth’s argument that the appeal should be quashed, and I concur in the majority’s conclusion to address appellant’s argument. At
In addressing appellant’s argument, the majority relies, in part, on the transcript of the post-verdict motions hearing. At 420. I believe that this reliance is improper in light of the Supreme Court’s decision in Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980) (per curiam). There the Court held that the Commonwealth’s entitlement to an extension must be determined on the basis of the record made at the extension hearing, and that if the Commonwealth has failed to establish its right at the extension hearing, it will not be permitted a “second bite.”
I am cognizant of the suggestion in Commonwealth v. Carr, 292 Pa.Super. 137, 436 A.2d 1189 (1981) (LIPEZ, J., dissenting), that the Commonwealth may take a second bite if the bite is at the post-verdict motion stage instead of—as in Abridge—on remand. This suggestion, however, was dictum; the issue in Carr was whether Abridge should be applied retrospectively, and the holding was that it should be applied only prospectively. In Carr that holding resulted in an affirmance, for there, when the lower court permitted a second bite, Abridge had not been decided. Here, in contrast, the post-verdict motion hearing was held four months after Abridge had been decided.
*434To be sure, if dictum is found persuasive, it may in a later case be adopted as a holding. But I do not find the dictum in Carr persuasive, for the reasoning offered in its support is inconsistent with, and therefore its potential authoritativeness is precluded by, the reasoning of the Supreme Court in Abridge.
In Carr the majority of the court reasoned that “the entire record,” by which it meant the record including the record of the post-verdict motion hearing, “demonstrates compliance with Rule 1100,” 292 Pa.Super. at 140 n. 1, 436 A.2d at 1191 n. 1, and that “[Abridge ] does not require appellate courts to turn a blind eye to a record establishing compliance with Rule 1100 and to discharge a properly convicted defendant despite actual compliance with Rule 1100 as established by the record certified for review,” 292 Pa.Super. at 140, 436 A.2d at 1191. The difficulty with this reasoning is that it begs the question: If there has been “compliance with Rule 1100,” then neither Abridge nor any other case requires “discharge [of] a properly convicted defendant.” The question, however, is whether there has been compliance with Rule 1100. Abridge dispositively answers this question by holding that there has not been such compliance when the Commonwealth fails to prove at the extension hearing that it is entitled to an extension.
The holding in Abridge was in no sense novel—and the Supreme Court emphasized the lack of novelty by announcing its decision in the form of a three paragraph per curiam order. It was early established that under Rule 1100, a motion for an extension may be granted only upon the basis of a record that supports findings showing that the extension is warranted. Thus in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Court held that “[h]enceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing .. [etc.]” Id., 469 Pa. at 222, 364 A.2d at 1349-50 (emphasis added). Consequently, an extension granted without a record having been made at the extension hearing cannot be characterized as having been granted “in compliance with” the rule. *435Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). Making the record later cannot cure the failure to comply with the rule. And this is equally true whether the record is made later at the post-verdict motion stage or later after remand. For the terms of the rule and the cases implementing it preclude any nunc pro tunc procedure, or, to use the Supreme Court’s phrase in Abridge, any “second bite.”
The dictum in Carr suggesting that nevertheless a “second bite” is permissible, if it is taken at the post-verdict motion stage instead of on remand, is therefore inconsistent with the terms of the rule and settled authority.
The dictum is also inconsistent with settled policy. The policy underlying Rule 1100 and the cases implementing it is to ensure the speedy disposition of criminal cases. Thereby protection is extended both to the defendant’s constitutional right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the “overriding interest” of the public, Commonwealth v. Mayfield, supra, 469 Pa. at 221, 364 A.2d at 1349 (citing ABA Standards Relating to Speedy Trial, § 1.1 (commentary) (Approved Draft, 1972), where it is said that “[f]rom the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses”.) This policy is implemented by requiring that the Commonwealth prove, before the trial, at the extension hearing, that it is entitled to an extension—in other words,' that it is consistent with both the defendant’s and the public’s interests to try the case not then but later. To permit the Commonwealth to prove after the trial that it was entitled to an extension—to give it a “second bite”—would be inconsistent with and would frustrate both the defendant’s and the public’s interests. Trials would be conducted under, a cloud of doubt as to whether they were legal; no one could know whether they were *436legal, for no record and no findings would exist showing that they were. Disorder would be engendered in the courts. Instead of the propriety of an extension being resolved in the pre-trial motions court, thereby enabling cases to be scheduled in a rational manner, resolution would be transferred to the post-verdict motions court, which would have to hold a second, unnecessary, hearing. Frequently, this hearing would occur many months after the trial itself had been held. (Here, as a specific example, the trial was held on December 12, 1979, and the post-verdict motions hearing was held on October 27, 1980.) Should the post-verdict court conclude that the extension should not have been granted, the result would be not only a greatly delayed disposition of the case, but the expense and waste arising from having conducted the trial, all to the public’s great disadvantage. Plainly, the only fair, orderly, and economical way to proceed is to decide before trial whether an extension is warranted. That is the way specified by Rule 1100(c), and it is the way insisted upon by Abridge and many other cases, such as Commonwealth v. Ehredt, supra, and the cases there cited. Therefore, we should address appellant’s argument solely on the basis of the record developed at the extension hearings held on August 2 and November 30, 1979.
-3-
(a)
The first challenged extension was granted after a hearing held on August 2, 1979. Trial had been scheduled for July 12, 1979, but appellant had not appeared for trial. The run date then in effect was July 16, 1979. The majority justifies its' conclusion that the August 2 extension was properly granted on “the basis of additional facts which came to light at [appellant’s post-verdict motions] hearing ____” At 420. For the reasons just stated, I do not believe that the record developed at that hearing should be considered in addressing appellant’s argument. A review of the transcript of the August 2 extension hearing compels *437the conclusion that the extension should not have been granted.
To be entitled to an extension, the Commonwealth must prove that it has attempted diligently to bring the defendant to trial within the prescribed time period, and that obstacles imposed by the administration of court business made it impossible to do so. Commonwealth v. Mayfield, supra. The standard of due diligence requires the Commonwealth to take affirmative steps to secure the defendant’s presence at trial. See Commonwealth v. Ashford, 277 Pa.Super. 400, 419 A.2d 1206 (1980) (error to grant motion for extension where record devoid of evidence demonstrating efforts to serve warrant or to notify him by telephone or mail). The Commonwealth must prove these facts by a preponderance of the evidence. Commonwealth v. Ehredt, supra; Commonwealth v. Antonuccio, 257 Pa. Super. 535, 390 A.2d 1366 (1978).
At the extension hearing, the Commonwealth neither alleged the existence of nor offered evidence tending to establish that it had attempted prior to July 12, 1979, in any way, to locate appellant or to arrange for his appearance for trial on that date. Appellant’s attorney contended at the hearing that the District Attorney had been notified in advance of the trial date that appellant was incarcerated, and that the Commonwealth therefore “should have ordered a bring down prior to the date of the trial.” N.T. 8/2/79 at 2. The assistant district attorney did not deny notification but only asserted that upon noting appellant’s absence from the courtroom on July 12, a forthwith bring-down was requested but that the court refused to order it. Id. No evidence was presented in support of this assertion, and the hearing transcript casts doubt on it, for the hearing judge stated that “[t]here is nothing about that here ...,” and he indicated that the only notation on the court’s records was “7-12, the defendant was not brought down.” Id.
I cannot conclude on the basis of this record that the Commonwealth made any attempt to secure appellant’s presence at trial on July 12, either before the trial date or *438upon noting appellant’s absence from the courtroom. The mere fact that appellant was incarcerated did not excuse the Commonwealth from the obligation to take affirmative steps to secure his presence. Cf. Commonwealth v. Smith, 274 Pa.Super. 229, 418 A.2d 380 (1980) (Incarceration is not by itself sufficient to render defendant unavailable for trial for purposes of Rule 1100(d)); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978) (same); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977) (same). The conclusion that the August 2 extension was improperly granted is, therefore, inescapable. This conclusion alone is sufficient to warrant appellant’s discharge.
(b)
The majority holds that the November 30, 1979, extension was also properly granted because the Commonwealth justifiably relied on the ROR Warrant Service Unit to notify appellant of the October 25 trial date. At 431. But the record of the November 30 extension hearing does not establish that the Commonwealth had arranged in advance of the trial date for the ROR Warrant Service Unit to notify appellant at the drug program in New Jersey of the trial date, much less that it relied on such an arrangement. Indeed, the Commonwealth introduced no evidence at the hearing of any efforts to notify appellant at the drug program, despite the fact that the Commonwealth knew more than a month in advance of the trial date that appellant was enrolled in the drug program. This knowledge is disclosed by the fact that appellant’s participation in the program had already been invoked by the Commonwealth to justify a continuance of appellant’s trial from September 11 to October 25. (Id.) (Commonwealth’s Petition for Extension, filed September 12, 1979).
Despite the absence of any indication on the record that the Commonwealth attempted to secure appellant’s presence at trial on October 25, the majority finds that the Commonwealth acted with due diligence, because “it would offend our sense of justice to hold the Commonwealth accountable for retrieving appellant from New Jersey when *439his own counsel apparently made no effort to notify him of his court obligation.” At 431. Whether or not it comports with the majority’s “sense of justice,” the fact that the Defender Association may have known that appellant’s trial had been scheduled for October 25 in no way undermines the fact that as the rule is now written, an extension may not be granted except upon a showing by the Commonwealth that it attempted with due diligence to obtain the defendant’s presence at trial within the prescribed period. Commonwealth v. Ehredt, supra; Commonwealth v. Antonuccio, supra. The November 30 extension was not predicated upon such a showing. It therefore should not have been granted.
Appellant should be discharged.